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TMI Blog2019 (6) TMI 909X X X X Extracts X X X X X X X X Extracts X X X X ..... me frame. Petition disposed off. - W.P.No.16141 of 2019 And W.M.P.No.15883 of 2019 - - - Dated:- 14-6-2019 - Mr. Justice M. Sundar For the Petitioner : Mr.Hari Radhakrishnan For the Respondents : Mr.A.P.Srinivas Senior Standing Counsel ORDER Mr.Hari Radhakrishnan, learned counsel on record for writ petitioner is before this Court. Mr.A.P.Srinivas, learned senior Standing Counsel accepts notice on behalf of the sole respondent i.e., official respondent. 2. Though this matter is listed under the caption 'FOR ADMISSION' in the motion list, with the consent of learned counsel on both sides, the main writ petition itself is taken up, heard out and is being disposed of. 3. This writ petition has been filed assailing a 'Show-cause Notice' ('SCN' for brevity) being show-cause notice dated 24.08.2018 bearing reference F.No.S.Misc/159/2018-DRI issued by the respondent (hereinafter 'impugned SCN' for brevity) together with a corrigendum to the impugned SCN being corrigendum dated 28.02.2019. 4. Short facts shorn off unneces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Drawback Rules, 2017' (hereinafter 'said new Rules' for brevity). In other words, now the impugned SCN is under Rule 16A of said Rules and Rule 18 of said new Rules also owing to the corrigendum. f) It is in the aforesaid scenario, the writ petitioner has filed the instant writ petition assailing the impugned SCN and corrigendum thereto. 5. Having set out the factual matrix in a nutshell, this Court now proceeds to examine the submissions made at the bar today. 6. Learned counsel for petitioner projected his submissions on the sole ground that impugned SCN and corrigendum are barred by limitation. In other words, limitation is the only ground on which the impugned SCN and corrigendum are being assailed. 7. Learned counsel for writ petitioner very fairly submitted that no time frame has been prescribed in the said Rules as well as the said new Rules. It is not in dispute that both the said Rules and said New Rules have been made by Central Government in exercise of Rule making powers conferred on it under Section 75(2) of said Act. 8. In this backdrop, learned counsel for writ petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts of each case. 11. On the aforesaid basis, it was submitted that impugned SCN and corrigendum are clearly barred by limitation as the same have been issued nearly a decade after the exercise. To be noted, the exercise was between June 2009 and December 2009 and the impugned SCN is dated 24.08.2018. 12. Responding to the aforesaid submission, learned counsel for Revenue submitted that Gujarat High Court Division Bench judgment is not at the SCN stage and that it is at a stage where the writ petitioner had challenged the orders passed in revision i.e., order passed by the Revisional Authority. In other words, it was post adjudication and is therefore factually distinguishable is learned Revenue counsel's say. 13. It was also pointed out by the Revenue counsel that limitation is a mixed question of law and facts and in the aforementioned Gujarat High Court judgment itself it has been clearly held that what would be the period would depend on facts of each case. In the instant case, as the consignment itself appears to have been not there at the time of export i.e., not arrived at ICD are CFS, this is a matter where the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ught not to be entertained in view of the alternate statutory remedy available holding: (SCC pp.123 128, Paras 43 55) 43. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this Rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc., the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies avai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b) direct the Authority to complete the adjudication within a time frame. 19. Owing to all that have been set out supra, this Court passes the following order: a) Impugned SCN dated 24.08.2018 bearing reference F.No.S.Misc/159/2018-DRI and corrigendum dated 28.02.2019 are not set aside and the same will be carried to its logical end; b) Writ petitioner will file further response to the impugned SCN and corrigendum with all supporting documents within a fortnight from the date of receipt of a copy of this order; c) Respondent will decide the show-cause notice by adjudicating upon the issues in a manner known to law within a period of one month from the date of filing of the objections: d) As this Court has said that limitation shall be decided first, it does not mean that a separate order has to be passed with regard to limitation, but the proceedings will be subject to the decision taken on the limitation aspect. It is made clear that all these will be done in one go even if the Authority decides the limitation aspects against the writ petitioner. e) Post adjudicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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